July, 2018 | FORECLOSURE FRAUD | by DinSFLA

Archive | July, 2018

Bank of America Freezes Family’s Accounts After Demanding Proof of Citizenship

Bank of America Freezes Family’s Accounts After Demanding Proof of Citizenship

Fortune-

A Kansas couple says Bank of America blocked access to the account they’ve had with the bank since the early 2000s after they ignored a form demanding proof of citizenship from the husband, who happens to be a native of Wichita.

Josh Collins and Jessica Salazar Collins say they assumed the form was a scam, given their long relationship with the bank, but when they showed up at a bank branch, access was denied, with a flag next to Josh’s name saying “citizenship”. The account was unfrozen after he supplied a driver’s license.

Bank of America, which recently moved to stop lending to companies that make assault rifles, did not immediately respond to a request for comment by Fortune, but told the Kansas City Star it’s “required by law to maintain complete and accurate records for all of our customers and may periodically request information, such as country of citizenship and proof of U.S. residency”.

[FORTUNE]

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The U.S. Housing Market Looks Headed for Its Worst Slowdown in Years

The U.S. Housing Market Looks Headed for Its Worst Slowdown in Years

Bloomberg-

They were fed up with Seattle’s home bidding wars. They were only in their late 20s but had already lost two battles and were ready to renew with their landlord. Then, in May, their agent called.

Suddenly, Redfin’s Shoshana Godwin told the couple, sellers were getting jumpy, even here in the hottest of markets. Homes that should have vanished in days were sitting on the market for weeks. There was a three-bedroom fixer-upper just north of the city going for $550,000, down from more than $600,000. They made the leap in early June and had closed by the end of the month, for list price.
The U.S. housing market — particularly in cutthroat areas like Seattle, Silicon Valley and Austin, Texas — appears to be headed for the broadest slowdown in years. Buyers are getting squeezed by rising mortgage rates and by prices climbing about twice as fast as incomes, and there’s only so far they can stretch.
© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



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Ocwen dead last in JDPower’s survey of mortgage servicer satisfaction

Ocwen dead last in JDPower’s survey of mortgage servicer satisfaction

Palm Beach Post-

Troubled mortgage company Ocwen Financial fell into last place on JDPower’s 2018 survey of borrower satisfaction with mortgage servicers.

Ocwen’s score of 667 on a 1,000-point scale was the worst showing among companies that collect loan payments, JDPower said Thursday. Quicken Loans had the highest grade among for-profit companies, although it was topped by two nonprofit credit unions that serve veterans and military borrowers.

Ocwen’s score was up slightly from 2017, when its grade was 661. But last year, Ocwen placed next to last in JDPower’s survey. Ocwen also ranked last in JDPower’s 2016 survey.

[PALM BEACH POST]

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Posted in STOP FORECLOSURE FRAUD0 Comments

TFH 7/29 | Foreclosure Workshop #63: A Review and Analysis of Some of the Most Noteworthy July 2018 Judicial Decisions

TFH 7/29 | Foreclosure Workshop #63: A Review and Analysis of Some of the Most Noteworthy July 2018 Judicial Decisions

COMING TO YOU LIVE DIRECTLY FROM THE DUBIN LAW OFFICES AT HARBOR COURT, DOWNTOWN HONOLULU, HAWAII

LISTEN TO KHVH-AM (830 ON THE AM RADIO DIAL)

ALSO AVAILABLE ON KHVH-AM ON THE iHEART APP ON THE INTERNET

.

Sunday – July 29, 2018

Foreclosure Workshop #63: A Review and Analysis of Some of the Most Noteworthy July 2018 Judicial Decisions

.

 ———————

 

Judges everywhere are beginning to rethink past judicial decisions in the foreclosure area as it becomes more and more evident that fraud and deception have predominated behind the scenes in foreclosure cases nationwide.

This rethinking has led to a growing number of monthly attempts by more and more state and federal court judges, albeit as yet too few, to give more attention to their foreclosure cases.

This past month, for instance, a number of noteworthy judicial decisions both at the trial level and on appeal have been handed down potentially generating new foreclosure defenses in several state and federal jurisdictions that our listeners need to know about and understand, departing from The Rule Ritual which too often otherwise imprisons thought.

On today’s show, time permitting, we will examine a number of these new cases and their likely impact, if any, upon future foreclosure cases and potentially yours.

Among the important topics to be covered on today’s show will be:

1. The emerging evidentiary requirements for proving and disproving the sending and the receipt of loan default notices;

2. When Associations can and when they cannot conduct nonjudicial foreclosures based on power of sale authorizations contained either in condominium documents or in statutes;

3. Whether and if so how a lender needs to respond to a timely TILA rescission notice to avoid rescission, or whether rescission automatically complete upon a borrower simply sending a timely rescission notice and to whom;

4. When if a borrower’s defense against foreclosure is based on fraud in the original lender’s initiation of a loan, such as a fraudulent loan application, whether the statute of limitations having expired is a bar to that defense, or whether the doctrine of “equitable recoupment” allows the borrower to assert an otherwise stale claim to avoid the expiration of the applicable statute of limitations, so long as using fraud as a defense and not as a counterclaim, in other words, as a shield and not a sword, in order to either reduce the amount of a plaintiff’s recovery or to defeat foreclosure, whether one or both.

5. Whether a notice of default can be considered an acceleration, and once a loan balance is accelerated, whether and when if at all a past acceleration of the entire loan balance can be waived or rescinded by a lender or lender’s assignee.

6. Whether a debtor in bankruptcy upon receiving a discharge is obligated to pay post petition Association maintenance fees as required by condominium documents or has otherwise no such liability.

7. Whether and what HUD requirements must be satisfied before a lender is allowed to foreclose if HUD requirements are written into a loan or are imposed by statute.

Listen to today’s show to increase your understanding of these emerging issues in foreclosure defense which could help you save your home from foreclosure and your family from eviction.

Gary

Please go to our website, www.foreclosurehour.com, and join your fellow homeowners in the Homeowners SuperPac today.

A Membership Application is posted there waiting for your support.

 

 

.
Host: Gary Dubin Co-Host: John Waihee

.

CALL IN AT (808) 521-8383 OR TOLL FREE (888) 565-8383

Have your questions answered on the air.

Submit questions to info@foreclosurehour.com

The Foreclosure Hour is a public service of the Dubin Law Offices

Past Broadcasts

EVERY SUNDAY
3:00 PM HAWAII 
6:00 PM PACIFIC
9:00 PM EASTERN
ON KHVH-AM
(830 ON THE DIAL)
AND ON
iHEART RADIO

The Foreclosure Hour 12

 

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

Sakal v. Association of Apartment Owners of Hawaiian Monarch | HI ICA- Circuit Court has erred in dissmissing Sakal’s claims against the AOAO for wrongful foreclosure

Sakal v. Association of Apartment Owners of Hawaiian Monarch | HI ICA- Circuit Court has erred in dissmissing Sakal’s claims against the AOAO for wrongful foreclosure

Congrats to Dubin Law Offices

035355988 by DinSFLA on Scribd

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

It sure sounds like Trump is talking to Florida AG Pam Bondi in Cohen audio tape

It sure sounds like Trump is talking to Florida AG Pam Bondi in Cohen audio tape

Orlando Weekly-

On Tuesday evening, CNN released an audio recording between Donald Trump and his former personal attorney Michael Cohen, in which the two discuss purchasing the story rights to an alleged affair between Playboy model Karen McDougal and then-candidate Trump.

The conversation happened in September 2016, right around the same time records surfaced showing a potential pay-to-play donation of $25,000 to Florida Attorney General Pam Bondi while she was considering joining a lawsuit based in New York against Trump’s university.

While the most damning part of Cohen’s recording is clearly when Trump appears to instruct the lawyer to “pay in cash,” it’s worth noting that the recording also seems to strongly indicate the presidential candidate was talking to Bondi over the phone about the lawsuit with Trump University.

[ORLANDO WEEKLY]

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Posted in STOP FORECLOSURE FRAUD0 Comments

THE BANK OF NEW YORK MELLON v. KINGSBURY | New Jersey appeals court says statute of limitations does not apply in allegedly fraudulent mortgage application

THE BANK OF NEW YORK MELLON v. KINGSBURY | New Jersey appeals court says statute of limitations does not apply in allegedly fraudulent mortgage application

H/T Dubin Law Offices

Lexology-

On July 13, the Superior Court of New Jersey Appellate Division reversed a trial court’s decision, ruling that a deceased homeowner’s family (defendants) had provided sufficient evidence to show that a division of a national bank (lender) had knowingly engaged in predatory lending practices when it approved a fraudulent mortgage application in violation of the New Jersey Consumer Fraud Act (Act). According to the opinion, in 2007 when the now deceased homeowner purchased a house, the lender may have been complicit in creating and approving a fraudulent loan application that, among other things, stated falsely that (i) the homeowner was a small business owner with a monthly income of $30,000 rather than $1,500, and (ii) the down payment came from the homeowner, when it supposedly came from a second mortgage offered to him from the same lender.

[LEXOLOGY]

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0249-16T2

THE BANK OF NEW YORK MELLON
f/k/a THE BANK OF NEW YORK,
AS TRUSTEE FOR THE
CERTIFICATEHOLDERS OF THE
CWALT, INC., ALTERNATIVE
LOAN TRUST 2007-24 MORTGAGE
PASS-THROUGH CERTIFICATES,
SERVICES 2007-24,

              Plaintiff-Respondent,

v.

JOHN KINGSBURY, his heirs,
devisees and personal
representatives and his, her, or
any of their successors in right,
title, and interest; GLENN MICHAEL
KINGSBURY; MRS. GLENN MICHAEL
KINGSBURY, his wife; MRS. JOHN
KINGSBURY, his wife; SUSAN E.
KINGSBURY, n/k/a SUSAN E. DANSON,

                 Defendants-Appellants,

and

STATE OF NEW JERSEY; UNITED STATES
OF AMERICA,

            Defendants.
____________________________________________

              Argued May 1, 2018 – Decided July 13, 2018
          Before Judges Hoffman and Mitterhoff.

          On appeal from Superior Court New Jersey,
          Chancery Division, Ocean County, Docket No.
          F-012351-15.

          Mark G. Schwartz argued the cause for
          appellants (Cooper Levenson, PA, attorneys;
          Howard E. Drucks and Jennifer B. Swift, on the
          briefs).

          Eugene R. Mariano      argued the cause for
          respondent (Parker     McCay, PA, attorneys;
          Eugene R. Mariano,     of counsel and on the
          brief).

PER CURIAM

     In   this   mortgage   foreclosure   action,   defendant     Glenn

Kingsbury1 appeals from an August 5, 2016 final judgment entered

by the Chancery Division, following the court's grant of summary

judgment in favor of plaintiff, The Bank of New York Mellon, on

April 29, 2016.2 On appeal, defendant challenges the trial court's




1 On February 5, 2012, the mortgagor, John Kingsbury (decedent),
passed away.   On June 22, 2012, the Atlantic County Surrogate
issued Letters Testamentary to defendant, decedent's son,
confirming his appointment and qualification as executor of his
father's estate. For ease of reference, we refer to John Kingsbury
as decedent and his son, Glenn Kingsbury, as defendant.
2
   The notice of appeal refers only to the August 5, 2016 final
judgment.   However, defendant's Appellate Division Civil Case
Information Statement identifies the underlying summary judgment
order as the order he seeks to appeal. Both parties have fully
briefed the court's decision granting summary judgment. In the
interest of justice, we deem the appeal properly taken from the
summary judgment order.

                                  2                             A-0249-16T2
rejection of his claim that decedent was the victim of predatory

lending, in violation of the New Jersey Consumer Fraud Act (CFA),


N.J.S.A. 56:8-1 to -210.          For the following reasons, we reverse

and remand.

                                      I

       On March 20, 2007, decedent, then seventy-two years old,

executed a Real Estate Contract (Contract) for the purchase of a

beachfront home in Beach Haven.        The Contract provided for a sale

price of $1,775,000, a deposit of $1000, an additional deposit of

$126,500 within ten days of the signing of the Contract, and a

contingency of buyer obtaining a mortgage of $1,597,500.                   The

Contract did not reference a second mortgage.

       The record indicates the closing for the purchase took place

on June 8, 2007.       On that date, decedent executed an Interest Only

Fixed Rate Note (Note) in favor of Countrywide Home Loans, Inc.

(Countrywide) for $1,420,000, along with a corresponding mortgage.

The Note provided for a thirty-year term, with monthly payments

of $9319 for the first 120 months and $11,767 thereafter. Decedent

also   executed    a    Uniform   Residential   Loan    Application     (Loan

Application) on the same day. The Loan Application states decedent

was the self-employed owner of Cheer Tech for ten years and two

months and had a monthly income of $30,000, composed of a base

income of $25,000 and a pension of $5000.              It further listed a

                                      3                               A-0249-16T2
contract    sales    price    of   $1,775,000,    subordinate      financing      of

$177,500,    earnest    money      of   $177,500,    and   a    loan   amount     of

$1,420,000.     Also on June 8, 2007, decedent executed a HUD-1

Uniform    Settlement       Statement,    which   listed    earnest      money    of

$177,500, a principal loan amount of $1,420,000, and a second

mortgage of $177,050.

     Plaintiff's file regarding decedent's loan contained two

additional documents.        First was an April 30, 2007 letter decedent

allegedly    wrote    "to    explain     inquiries   on    my   credit   report";

apparently, "[d]ue to the size of the mortgage," decedent had

contacted other lenders.           Decedent also allegedly wrote, "I am

retired," but "bought into the business Cheer Tech in 1997 . . . ."

Second was a May 14, 2007 letter from an employee of H&R Block

stating, decedent "has filed as owner of Cheer Tech . . . since

1997.   I have been preparing his taxes for the last twelve years."

     On September 1, 2010, decedent stopped making the monthly

mortgage payments, constituting a default that he never cured.                    On

June 1, 2011, Mortgage Electronic Registration Systems, Inc., as

nominee for Countrywide, assigned the mortgage to plaintiff.                      As

noted, decedent passed away on February 5, 2012.                 A title search




                                          4                                A-0249-16T2
revealed a second mortgage for $177,5003 in favor of Countrywide

that was discharged on September 26, 2012.

     On August 22, 2014, plaintiff sent a notice of intent to

foreclose    to    decedent's   estate.      Plaintiff   filed      an   amended

foreclosure complaint on June 30, 2015 against decedent's estate

and heirs.    Defendant answered on September 9, 2015, alleging the

CFA barred plaintiff's claims due to Countrywide's fraudulent

actions, including material misrepresentation of decedent's income

on the loan application.

     On February 18, 2016, plaintiff filed a motion for summary

judgment.     On April 27, 2016, defendant filed opposition to

plaintiff's       motion,   arguing   the   court   should   hold    plaintiff

responsible for Countrywide's fraudulent actions in issuing the

loan.   Defendant also asserted plaintiff frustrated his right to

conduct meaningful discovery.

     On April 29, 2016, the trial court heard oral argument on

plaintiff's motion for summary judgment.              The court initially

noted that plaintiff is not a holder in due course because the

assignment of the note and mortgage to plaintiff occurred after

the loan went into default; as a result, plaintiff is "subject to


3
    We assume this second mortgage represents the same second
mortgage reflected on the settlement sheet, which lists a second
mortgage of $177,050. This discrepancy constitutes another issue
for the parties to address when they complete discovery.

                                       5                                 A-0249-16T2
the defenses that are relevant."        Plaintiff's counsel did not

dispute this point.      Defendant requested further discovery and

argued Countrywide defrauded decedent.        Plaintiff argued it met

the standard for summary judgment because decedent signed all of

the loan documents and defendant failed to establish fraud or

other wrongful conduct by Countrywide.

     The motion court found plaintiff established a prima facie

right to foreclose, concluding defendant failed to raise any

genuine issues of material fact.        The court specifically found

defendant's fraud claim "untenable."         The court also noted the

statute of limitations barred defendant from asserting a fraud

claim.   Furthermore, the court found decedent's failure to raise

a fraud claim at the time of the transaction, and the loan payments

he made for the next three years, ratified the note and mortgage.

The court further found the opposing certification of defendant

"unpersuasive,"   dismissing      it    as    "clearly   hearsay     and

speculation."     The    court   then   granted   plaintiff's   motion,

concluding defendant had "not met [his] burden for opposing . . .

summary judgment . . . ."

     On appeal, defendant argues the motion court erred in failing

to allow discovery, and in denying "the right to seek equitable

remedies."   We agree.



                                   6                            A-0249-16T2
                                    II

       We review a grant of summary judgment de novo, applying the

same standard as the trial court.         Henry v. N.J. Dep't of Human

Servs., 
204 N.J. 320, 330 (2010). Summary judgment must be granted

if "the pleadings, depositions, answers to interrogatories and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact challenged

and that the moving party is entitled to a judgment or order as a

matter   of   law."     R.   4:46-2(c).    Without   making   credibility

determinations, the court considers the evidence "in the light

most favorable to the non-moving party" and determines whether it

would be "sufficient to permit a rational factfinder to resolve

the alleged disputed issue in favor of the non-moving party."

Brill v. Guardian Life Ins. Co. of Am., 
142 N.J. 520, 540 (1995).

       The CFA authorizes a suit by "[a]ny person who suffers any

ascertainable loss of moneys or property, real or personal, as a

result of the use or employment by another person of any method,

act,   or   practice   declared   unlawful   under   this   act   . . . ."


N.J.S.A. 56:8-19.      Thus, "[t]o prevail on a CFA claim, a plaintiff

must establish three elements: '1) unlawful conduct by defendant;

2) an ascertainable loss by plaintiff; and 3) a causal relationship

between the unlawful conduct and the ascertainable loss.'"           Zaman



                                     7                             A-0249-16T2
v. Felton, 
219 N.J. 199, 222 (2014) (quoting Bosland v. Warnock

Dodge, Inc., 
197 N.J. 543, 557 (2009)).

       The CFA defines an "unlawful practice" as "any unconscionable

commercial    practice,    deception,   fraud,   false   pretense,     false

promise,     misrepresentation,    or    the     knowing,   concealment,

suppression, or omission of any material fact with intent that

others rely upon such concealment, suppression or omission, in

connection with the sale or advertisement of any merchandise or

real   estate   . . . ."     
N.J.S.A.   56:8-2.     An   "unconscionable

commercial practice" suggests a standard of conduct lacking in

"good faith, honesty in fact and observance of fair dealing."             Cox

v. Sears Roebuck & Co., 
138 N.J. 2, 18 (1994) (quoting Kugler v.

Romain, 
58 N.J. 522, 544 (1971)).

       Predatory lending may constitute unconscionable commercial

practice under the CFA.      See Assocs. Home Equity Servs., Inc. v.

Troup, 
343 N.J. Super. 254, 278-79 (App. Div. 2001).           Predatory

lending is:

            a mismatch between the needs and capacity of
            the borrower . . . .    In essence, the loan
            does not fit the borrower, either because the
            borrower's underlying needs for the loan are
            not being met or the terms of the loan are so
            disadvantageous to that particular borrower
            that there is little likelihood that the
            borrower has the capability to repay the loan.




                                    8                                A-0249-16T2
             [Nowosleska v. Steele, 
400 N.J. Super. 297,
             305 (App. Div. 2008) (alteration in original)
             (quoting Troup, 
343 N.J. Super. at 267).]

       Here, whether decedent's loan application contained material

false information, and if so, Countrywide's complicity in creating

and approving such a fraudulent application, constitute material

facts in dispute.        Defendant contends: decedent never owned or

worked     for   Cheer   Tech,     rather     defendant   owns   the   business;

decedent's monthly income at the time of loan origination was

approximately       $1500,   not   $30,000;     the   April   30,   2007    letter

regarding decedent's credit report contains a forged signature;4

and H&R Block never filed Cheer Tech's tax returns.                    Defendant

submitted a certification attesting to those facts.                 Viewed in the

light most favorable to defendant, those facts clearly establish

a material dispute as to whether Countrywide engaged in unlawful

conduct proscribed by the CFA.              See Brill, 
142 N.J. at 540.           We

discern no basis for the motion court's rejection of defendant's

certification as "clearly hearsay and speculation."

       Furthermore, defendant contends Countrywide misrepresented

decedent as providing earnest money, when the money actually came

from   a   second    mortgage      from   Countrywide;    inexplicably,        this



4
    The signature on the April 30, 2007 letter does appear
substantially different from the signature on the Note, the
mortgage, the Loan Application, and the Settlement Statement.

                                          9                                A-0249-16T2
mortgage was discharged shortly after decedent's death.                         We also

question whether the loan application decedent allegedly signed

on the date of settlement was the same application he signed when

he applied for the loan.             The application signed on the date of

closing listed as an asset his "DOWNPAYMENT" of $177,500, but did

not list any liabilities, except for an unpaid credit card balance

of $29.     Since Countrywide provided almost the entire amount of

the down payment via a second mortgage, it obviously knew the

application submitted to decedent at closing contained material

false    information.        Allowing      defendant       to   complete       discovery

should yield a full explanation of the facts and circumstances

surrounding the second mortgage, its discharge, and the degree of

Countrywide's      involvement        in    the    creation     or    submission        of

falsified documents.

      Accordingly, we find the trial court erred when it determined

the     record   showed   no    material          facts    in   dispute        regarding

Countrywide's      conduct     and    whether      it     engaged    in   an   unlawful

practice in violation of the CFA.               We therefore reverse the grant

of summary judgment and remand to allow the parties to complete

discovery.       Because the court entered its final judgment based

upon the order granting summary judgment, we also vacate the final

judgment.



                                           10                                    A-0249-16T2
                                III

     The trial court also found the statute of limitations bars

defendant's   CFA   defense.   However,   we   find   the   doctrine    of

equitable recoupment saves the defense.

     We agree the statute of limitations bars defendant from

pursuing an action under the CFA.     The statute of limitations for

the CFA is six years.   
N.J.S.A. 2A:14-1; Trinity Church v. Lawson-

Bell, 
394 N.J. Super. 159, 170 (App. Div. 2007) (citing Mirra v.

Holland Am. Line, 
331 N.J. Super. 86, 90-91 (App. Div. 2000)).

Decedent signed the note and mortgage on June 8, 2007.         Assuming

decedent knew of the fraud at that time, the statute of limitations

began to run.   Defendant asserted a claim of fraud in his answer

to plaintiff's complaint on September 9, 2015, more than eight

years after the loan origination.     However, defendant asserted the

claim as a defense, not as a counterclaim.            The doctrine of

equitable recoupment permits a defendant to assert an otherwise

stale claim and     avoid the statute of limitations, where the

defendant uses the claim as a shield instead of a sword.          Nester

v. O'Donnell, 
301 N.J. Super. 198, 208 (App. Div. 1997) (citing

Midlantic Nat'l Bank v. Georgian Ltd., 
233 N.J. Super. 621, 625

(Law Div. 1989)).

     A defendant may raise an equitable recoupment defense in

order to reduce the plaintiff's recovery in a foreclosure action

                                11                               A-0249-16T2
when the defendant claims fraud arising from the loan origination.

Troup, 
343 N.J. Super. at 271 (citing Beneficial Fin. Co. of Atl.

City v. Swaggerty, 
86 N.J. 602, 611 (1981)).             "[J]udges invented

the doctrine of equitable recoupment in order to avoid an unusually

harsh or egregious result from a strict application of a statute

of limitations."     Ibid. (quoting Georgian Ltd., 
233 N.J. Super.

at 625-26). Therefore, "the defense of recoupment 'is never barred

by the statute of limitations so long as the main action itself

is timely.'"     Ibid. (quoting Nester, 
301 N.J. Super. at 208).

     Here,   plaintiff   argues     the   statute   of    limitations     bars

defendant's CFA defense.      However, a strict application of the

statute of limitations on the CFA defense would result in a gross

injustice if Countrywide engaged in unlawful practices to defraud

decedent during the loan process. We note the equitable recoupment

defense does not invalidate the debt; it merely reduces the amount

of plaintiff's recovery.      Id. at 272.     While plaintiff may still

be entitled to foreclose, equitable recoupment may limit the

recovery to the amount of the foreclosure sale and preclude any

deficiency judgment against defendant.           We remand to the trial

court to allow the parties to complete discovery and determine an

equitable result.

     Reversed,     vacated,   and    remanded.      We     do   not    retain

jurisdiction.

                                    12                                A-0249-16T2
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Posted in STOP FORECLOSURE FRAUD0 Comments

OCC Enforcement Actions and Terminations for July 2018

OCC Enforcement Actions and Terminations for July 2018

The Office of the Comptroller of the Currency (OCC) today released new enforcement actions taken against national banks, federal savings associations, and individuals currently and formerly affiliated with national banks and federal savings associations.

All Cease and Desist Orders, Civil Money Penalty Orders, and Removal/Prohibition Orders are issued with the consent of the parties, unless otherwise indicated as a Decision and Order issued by the Comptroller of the Currency.

Copies of the final actions are available for download by viewing the searchable database of all public enforcement actions taken since August 1989 at http://apps.occ.gov/EnforcementActions/.

View the current final actions by selecting the enforcement action below. You may also submit a request electronically to obtain copies through the OCC’s online FOIA site, https://foia-pal.occ.gov/ or by writing to the Comptroller of the Currency, Communications Division, Suite 3E-218, Washington, DC 20219. When ordering, please specify the appropriate enforcement action number.

Cease and Desist Orders
No. Name/Bank/City Date
Connecticut
2018-044 UBS AG Stamford Branch, Stamford 5/31/2018
Florida
2018-044 UBS AG Miami Branch, Miami 5/31/2018
New York
2018-044 UBS AG NY 787 7th Ave WMA Branch, New York 5/31/2018
Civil Money Penalty Orders
No. Name/Bank/City Date
Florida
2018-060 Elden LeGaux, Gibraltar Private Bank & Trust Co., Coral Gables 6/21/2018
2018-061 William VanDresser, Gibraltar Private Bank & Trust Co., Coral Gables 6/21/2018
Oklahoma
2018-045 Mary Patricia Campbell, BOKF, National Association, Tulsa 6/20/2018
2018-046 Terri Lynn Pulley, BOKF, National Association, Tulsa 6/20/2018
2018-047 Cyndi Sue Wilkinson, BOKF, National Association, Tulsa 6/20/2018
Personal Cease and Desist Orders
No. Name/Bank/City Date
Oklahoma
2018-045 Mary Patricia Campbell, BOKF, National Association, Tulsa 6/20/2018
2018-046 Terri Lynn Pulley, BOKF, National Association, Tulsa 6/20/2018
Oregon
2018-048 Alexander Hamilton, High Desert Bank, Bend 6/15/2018
2018-049 Russell Schaub, High Desert Bank, Bend 6/15/2018
Removal / Prohibition Orders
No. Name/Bank/City Date
Delaware
2018-047 Cyndi Sue Wilkinson, BOKF, National Association, Tulsa 6/20/2018
Virginia
2018-050 Yeselin Sanchez, Capital One, National Association, Mclean 6/27/2018
Terminations of Existing Enforcement Actions
No. Type/Bank/City/Old EA# Date
California
2018-051 C&D, EH National Bank, Beverly Hills (EA# 2013-090) 6/26/2018
Kansas
2018-052 FA, The First National Bank of Beloit, Beloit (EA# 2015-035) 5/24/2018
New York
2018-053 FA, UBS Ag, New York (EA# 2017-033) 5/31/2018
Rhode Island
2018-054 C&D, Citizens Bank, National Association, Providence (EA# 2015-124) 6/26/2018
South Dakota
2018-055 C&D, Citibank, National Association, Sioux Falls (EA# 2014-160) 6/28/2018
2018-056 C&D, Wells Fargo Bank, National Association, Sioux Falls (EA# 2016-081) 6/18/2018
Tennessee
2018-057 C&D, First Tennessee Bank National Association, Memphis (EA# 2017-015) 6/26/2018
Virginia
2018-058 C&D, HSBC Bank USA, National Association, Mclean (EA# 2010-199) 6/27/2018
2018-059 C&D, HSBC Bank USA, National Association, Mclean (EA# 2012-261) 6/27/2018
# # #
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The SHIT Done Hit The PLAN? | HINRICHSEN v. Bank of America, NA | TILA | Specifically, Plaintiff’s theory of liability on each of his claims is as follows: On January 12, 2012, Plaintiff exercised a conditional right of rescission based on MLD’s failure to satisfy TILA’s disclosure requirements. >> MLD did not contest the rescission << , and as such, the deed of trust and promissory note became void

The SHIT Done Hit The PLAN? | HINRICHSEN v. Bank of America, NA | TILA | Specifically, Plaintiff’s theory of liability on each of his claims is as follows: On January 12, 2012, Plaintiff exercised a conditional right of rescission based on MLD’s failure to satisfy TILA’s disclosure requirements. >> MLD did not contest the rescission << , and as such, the deed of trust and promissory note became void "by operation of law", and unenforceable by any alleged successor to MLD," including Defendant. (SAC ¶ 22.) Nevertheless, Defendant initiated foreclosure proceedings against the property "in an attempt to collect on the underlying unenforceable debt[.]" (Id. ¶ 23.)

Here, Plaintiff argues MLD has not taken any of these actions, and Defendant has not provided any evidence to the contrary. The Ninth Circuit, consistent with Jesinoski, recognized “[i]f [the lender] had acquiesced in [the borrower]’s notice of rescission, then the transaction would have been rescinded automatically, thereby causing a security interest to become void[.]” Yamamoto v. Bank of New York, 329 F.3d 1167, 1172 (9th Cir. 2003)see U.S. Bank N.A. v. Naifeh, 1 Cal. App. 5th 767,
779 (Cal. Ct. App. 2016), review denied (Nov. 9, 2016) (“a timely notice of rescission automatically renders the security interest void under section 1635(b) where the creditor acquiesces in the rescission or ignores it.“). In other words, “when the unwinding process is not completed and
neither party files suit within the TILA statute of limitations[,] . .  Jesinoski directs that the rescission and voiding of the security interest are effective as a matter of law as of the date of the notice.” 
Paatalo, 146 F. Supp. 3d at 1245see Hoang v. Bank of Am., N.A., No. C17-0874JLR, 2017 WL 5559846, at *7 (W.D. Wash. Nov. 16, 2017) (“If a borrower effects rescission through notice under § 1635(a), he is not required to also bring a claim to enforce that rescission or have a court declare his rescission proper because he and the lender can complete the rescission process.”).[3] Thus, this argument is without merit.

RODNEY L. HINRICHSEN, Plaintiff,
v.
BANK OF AMERICA, N.A. et al., Defendants.

Case No. 17-cv-0219 DMS (RBB).
United States District Court, S.D. California.

July 17, 2018.
Rodney L. Hinrichsen, Plaintiff, represented by John Kevin Mitchell, The Law Offices of John K. Mitchell.

Bank of America, N.A., Defendant, represented by J. Owen Campbell, Severson & Werson.

Federal Home Loan Mortgage Corporation, Miscellaneous Party, represented by Cody Joseph Cocanig, Brown Law Group & Luis E. Lorenzana, Brown Law Group.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

DANA M. SABRAW, District Judge.

Pending before the Court is Defendant Bank of America, N.A.’s (“BofA”) motion for summary judgment. Plaintiff Rodney L. Hinrichsen filed an opposition, and Defendant filed a reply. For the following reasons, Defendant’s motion for summary judgment is granted in part and denied in part.

I.

BACKGROUND

On December 17, 2009, Plaintiff and his spouse refinanced their property in Alpine, California by executing a promissory note in the amount of $310,000, secured by a deed of trust in favor of MLD Mortgage, Inc. (“MLD”), the original lender. (Second Amended Complaint (“SAC”) ¶ 8; Declaration of Ryan Dansby (“Dansby Decl.”) ¶ 4, Exs. 1-2.) In January 2010, BofA purchased the loan from MLD, and its subsidiary, BAC Home Loans Servicing, LP (“BAC”), became the loan servicer. (Dansby Decl. ¶ 5.) BofA later sold the loan to Freddie Mac, and BAC remained as the loan servicer. (Id.) BAC subsequently merged into BofA, and loan servicing transferred to BofA on July 1, 2011. (Id., Ex. 3.)

Plaintiff made his last monthly payment on the loan on January 12, 2012 and ceased making further payments. (Dansby Decl. ¶ 7, Ex. 9.) On January 17, 2012, approximately two years after obtaining the loan, Plaintiff sent a letter to MLD purporting to rescind the loan on grounds that MLD failed to provide “copies of the material disclosures including the Regulation Z — Truth in Lending Statement and required notices of right to cancel as mandated by law.” (SAC ¶ 9; Declaration of Owen Campbell (“Campbell Decl.”) ¶ 7, Ex. 4.) MLD did not contest the notice of rescission, and therefore, Plaintiff claims the deed of trust and the promissory note became void upon exercising his right of rescission under TILA. (SAC ¶¶ 10-11.)

On October 25, 2016, BofA’s foreclosure trustee recorded a notice of default against the property. (SAC ¶ 13.) On January 30, 2017, a notice of trustee’s sale was recorded. (Id. ¶ 14.) In an effort to stop that sale, Plaintiff initially filed a Complaint against BofA and its foreclosure trustee, which has now been dismissed from the present action. On October 10, 2017, Plaintiff filed a SAC alleging the following five claims: (1) violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692f(6), (2) violation of Cal. Civ. Code § 2924.17, (3) cancellation of instruments, (4) injunctive relief, and (5) declaratory relief.

II.

LEGAL STANDARD

Summary judgment is appropriate if there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party has the initial burden of demonstrating that summary judgment is proper. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The moving party must identify the pleadings, depositions, affidavits, or other evidence that it “believes demonstrates the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties’ differing versions of the truth.” S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982).

The burden then shifts to the opposing party to show that summary judgment is not appropriate. Celotex, 477 U.S. at 324. The opposing party’s evidence is to be believed, and all justifiable inferences are to be drawn in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, to avoid summary judgment, the opposing party cannot rest solely on conclusory allegations. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Instead, it must designate specific facts showing there is a genuine issue for trial. Id.see also Butler v. San Diego Dist. Atty’s Off., 370 F.3d 956, 958 (9th Cir. 2004) (stating if defendant produces enough evidence to require plaintiff to go beyond pleadings, plaintiff must counter by producing evidence of his own). More than a “metaphysical doubt” is required to establish a genuine issue of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

III.

DISCUSSION

Defendant moves for summary judgment on Plaintiff’s claims, which are premised on Defendant’s alleged attempts at foreclosure without an enforceable security interest. Specifically, Plaintiff’s theory of liability on each of his claims is as follows: On January 12, 2012, Plaintiff exercised a conditional right of rescission based on MLD’s failure to satisfy TILA’s disclosure requirements. MLD did not contest the rescission, and as such, the deed of trust and promissory note became “void by operation of law, and unenforceable by any alleged successor to MLD,” including Defendant. (SAC ¶ 22.) Nevertheless, Defendant initiated foreclosure proceedings against the property “in an attempt to collect on the underlying unenforceable debt[.]” (Id. ¶ 23.)

Here, the parties do not dispute the viability of Plaintiff’s claims hinges on the validity of the notice of rescission. Defendant initially argues Plaintiff’s claims fail because the notice of rescission was untimely and therefore ineffective. Specifically, Defendant contends there is no genuine dispute of material fact that Plaintiff received the requisite TILA disclosures and notices, and thus, Plaintiff only had three days after consummation of the loan to rescind, which he failed to do. TILA’s “buyer’s remorse” provision, Semar v. Platte Valley Fed. Sav. & Loan Ass’n, 791 F.2d 699, 701 (9th Cir. 1986), grants buyers the right to rescind within three days of either consummation of the loan transaction or delivery of certain information and rescission forms, whichever is later. 15 U.S.C. § 1635(a). This is an “unconditional” right to rescind for three days. Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790, 792 (2015).

After three days have passed, however, borrowers “may rescind only if the lender failed to satisfy the Act’s disclosure requirements.” Id. (emphasis added). This right of rescission is “conditional.” Jesinoski, 135 S. Ct. at 792. “If the creditor fails to make the required disclosures or rescission notices, the borrower’s `right of rescission shall expire three years after the date of consummation of the transaction.'” Keiran v. Home Capital, Inc., 858 F.3d 1127, 1131 (8th Cir. 2017) (quoting 15 U.S.C. § 1635(f)) (emphasis added). However, “if no disclosure violation occurs, `the right to rescind is not extended for three years and instead ends at the close of the three-day window following consummation of the loan transaction.'” Id. (quoting Keiran v. Home Capital, Inc., 720 F.3d 721, 730 n.8 (8th Cir. 2013)). Given the date of the consummation of the loan, December 17, 2009, and the date of Plaintiff’s notice of rescission, January 17, 2012, Plaintiff does not fall within TILA’s “buyer’s remorse” provision. Thus, Plaintiff’s invocation of his right of rescission is timely “only if [MLD] failed to satisfy TILA’s disclosure requirements.” Jesinoski, 135 S. Ct. at 792.

Defendant contends Plaintiff’s written acknowledgment of receipt of TILA disclosures and notices of right to cancel creates a rebuttable presumption under 15 U.S.C. § 1635(c) that Plaintiff received these documents.[1] Defendant therefore argues Plaintiff only had three days to rescind the loan because there was no TILA violation. (See Dansby Decl. ¶ 6, Exs. 4-8.) In support, Defendant has produced copies of two notices of right to cancel signed by Plaintiff and “acknowledg[ing] the receipt of two (2) completed copies of this notice of right to cancel.” (Id., Ex. 5.) Moreover, Defendant has produced copies of disclosure documents wherein Plaintiff signed and acknowledged that he had received “all applicable disclosures required by the Truth in Lending Act[.]” (Id., Ex. 4; see also id., Exs. 6-8.) The acknowledgments are unambiguous and give rise to the presumption that Plaintiff received the necessary documents.

To rebut this presumption, Plaintiff has submitted a declaration attesting “[he] did not receive copies of [his] loan documents on 12/17/09 or any other time thereafter, including material disclosures and the appropriate number of notices of right to cancel.” (Declaration of Rodney L. Hinrichsen ¶ 1.) Plaintiff’s declaration is consistent with his testimony at deposition denying receipt of such documents. As such, Plaintiff’s evidence is enough to rebut the presumption of delivery. See Abubo v. Bank of New York Mellon, 977 F. Supp. 2d 1037, 1045 (D. Haw. 2013). Construing the evidence most favorably to Plaintiff, as the Court must on the present motion, there is a genuine issue of material fact whether Plaintiff’s notice of right of rescission is timely.

Defendant further argues Plaintiff’s signed acknowledgments are conclusive proof of receipt, pursuant to 15 U.S.C. § 1641(b). Based on the plain language of the statute, however, Defendant is not insulated by § 1641(b), which carves out rescission claims under TILA. Section 1641(b) provides:

Except as provided in section 1635(c) of this title, in any action or proceeding by or against any subsequent assignee of the original creditor without knowledge to the contrary by the assignee when he acquires the obligation, written acknowledgement of receipt by a person to whom a statement is required to be given pursuant to this subchapter shall be conclusive proof of the delivery thereof . . .

15 U.S.C. §1641(b) (emphasis added). Section 1635(c) provides that acknowledgment of receipt of TILA disclosures creates only a rebuttable presumption. SeeLenhart v. EverBank, No. 2:12-CV-4184, 2013 WL 5745602, at *6 (S.D.W. Va. Oct. 23, 2013)In re Bumpers, No. 03 C 111, 2003 WL 22119929, at *5 (N.D. Ill. Sept. 11, 2003). Thus, the signed acknowledgments at issue here created only a rebuttable presumption of receipt.

Next, Defendant argues that even if the notice of rescission was timely, Plaintiff’s claims fail because they are premised on an incorrect theory that a notice of rescission under TILA automatically renders a lien void.[2] The Court disagrees. TILA provides unequivocally that a borrower “shall have the right to rescind . . . by notifying the creditor . . . of his intention to do so[.]” 15 U.S.C. § 1635(a). The Supreme Court in Jesinoski stated this “language leaves no doubt that rescission is effected when the borrower notifies the creditor of his intention to rescind.” Jesinoski, 135 S. Ct. at 792 (emphasis added). The borrower does not need to sue to enforce the right within the three year statute of repose. Id. Yet, the right to rescind, as explained above, is predicated on a lender failing to provide the required disclosures in the first instance.See id. (a borrower has the right to rescind “only if the lender failed to satisfy the Act’s disclosure requirements.”).

Once a borrower properly exercises his or her right of rescission, it is incumbent upon the lender to act. “When an obligor exercises his right to rescind . . . any security interest given by the obligor . .  becomes void upon such a rescission.” 15 U.S.C. § 1635(b). Faced with a notice of rescission, the lender can unwind the loan by returning the borrower’s down payment and taking any other action necessary “to reflect the termination of any security interest created under the transaction.” Id. The borrower then would be required to “tender the property to the creditor[.]” Id. Alternatively, the lender can sue and contest the borrower’s right to rescind. See Paatalo v. JPMorgan Chase Bank, 146 F. Supp. 3d 1239 (D. Or. 2015) (discussing rescission under TILA, Jesinoski, and lender’s options).

Here, Plaintiff argues MLD has not taken any of these actions, and Defendant has not provided any evidence to the contrary. The Ninth Circuit, consistent withJesinoski, recognized “[i]f [the lender] had acquiesced in [the borrower]’s notice of rescission, then the transaction would have been rescinded automatically, thereby causing a security interest to become void[.]” Yamamoto v. Bank of New York, 329 F.3d 1167, 1172 (9th Cir. 2003)see U.S. Bank N.A. v. Naifeh, 1 Cal. App. 5th 767, 779 (Cal. Ct. App. 2016), review denied (Nov. 9, 2016) (“a timely notice of rescission automatically renders the security interest void under section 1635(b) where the creditor acquiesces in the rescission or ignores it.“). In other words, “when the unwinding process is not completed and neither party files suit within the TILA statute of limitations[,] . . . Jesinoski directs that the rescission and voiding of the security interest are effective as a matter of law as of the date of the notice.” Paatalo, 146 F. Supp. 3d at 1245see Hoang v. Bank of Am., N.A., No. C17-0874JLR, 2017 WL 5559846, at *7 (W.D. Wash. Nov. 16, 2017) (“If a borrower effects rescission through notice under § 1635(a), he is not required to also bring a claim to enforce that rescission or have a court declare his rescission proper because he and the lender can complete the rescission process.”).[3] Thus, this argument is without merit.

Lastly, Defendant argues it is entitled to summary judgment on the § 1692f(6) claim because it is not a debt collector for purposes of the FDCPA. Section 1692f(6) prohibits a debt collector from using unfair or unconscionable means to collect or attempt to collect a debt when there is no “enforceable security interest.” 15 U.S.C. § 1692f(6)(A). “[A] person enforcing a security interest” is considered a “debt collector” under the FDCPA. Dowers v. Nationstar Mortg., LLC, 852 F.3d 964, 971 (9th Cir. 2017) (citing 15 U.S.C. § 1692a(6)). The FDCPA, however, exempts from the definition of debt collector “any person collecting or attempting to collect . . . a debt which was not in default at the time it was obtained by such person[.]” 15 U.S.C. § 1692a(6)(F). Thus, if a loan servicer acquired servicing rights before the debt went into default, it is exempt as a debt collector. See Rich v. Bank of Am., N.A., 666 F. App’x 635, 639 (9th Cir. 2016) (citing De Dios v. Int’l Realty & Invs., 641 F.3d 1071, 1074 (9th Cir. 2011)); see also Hanif v. Bank of New York Mellon, No. 3:16-CV-1820-SI, 2016 WL 7378991, at *4 (D. Or. Dec. 20, 2016) (citing cases). Here, the undisputed evidence shows Defendant and its subsidiary have serviced the loan at issue since 2010, well before Plaintiff’s default in 2012. Because Defendant serviced the loan before Plaintiff’s default, it does not qualify as a debt collector for purposes of the FDCPA. Accordingly, Defendant’s motion is granted as to the § 1692f(6) claim. III.

CONCLUSION

For the foregoing reasons, Defendant’s motion for summary judgment is granted as to the § 1692f(6) claim and denied as to the remaining claims.[4]

IT IS SO ORDERED.

[1] Section 1635(c) provides if a consumer acknowledges in writing that he or she did receive a required disclosure, this creates “a rebuttable presumption of delivery thereof.” 15 U.S.C. § 1635(c).

[2] Defendant also argues that the Court should require Plaintiff to tender or post a bond because the lien is not void, but voidable. However, because genuine issues of material fact remain, the Court declines to address this argument. See D’Oleire v. Select Portfolio Servicing, Inc., No. 316CV02520GPCNLS, 2016 WL 7188289, at *9 (S.D. Cal. Dec. 12, 2016) (“California courts have distinguished between a void and a voidable foreclosure sale to determine whether an allegation of tender is required.”); see also Glaski v. Bank of Am., Nat’l Ass’n, 218 Cal. App. 4th 1079, 1100 (Cal. Ct. App. 2013) (homeowner not required to allege tender in causes of action for fraud, quiet title, wrongful foreclosure, declaratory relief, and cancellation of instruments where the foreclosure sale is void rather than voidable).

[3] Here, whether Plaintiff’s claims for injunctive relief or declaratory relief are time-barred is not at issue.

[4] Plaintiff’s request for judicial notice is denied because the documents contained therein were not necessary to the resolution of the present motion.

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Veltre v. Fifth Third Bank | Third Circuit Upholds Foreclosure Sale Against Preference Attack

Veltre v. Fifth Third Bank | Third Circuit Upholds Foreclosure Sale Against Preference Attack

JDSUPRA-

On July 19, the Third Circuit Court of Appeals entered a decision upholding the results of a foreclosure sale against a debtor’s allegation that the sale was a preference because the bankruptcy estate could have sold the property for a higher price. Veltre v. Fifth Third Bank (In re Veltre), Case No. 17-2889 (3d Cir. July 19, 2018).

Veltre’s home was encumbered by two mortgages prior to her bankruptcy; a senior mortgage in favor of Capital One Bank and a second mortgage held by another bank. Veltre defaulted on her loan, at which point the first lienholder foreclosed and the property went to sheriff’s sale. At the sale, the second lienholder purchased the home at auction for $90,000, which paid off the first mortgage in full.

Veltre later filed for bankruptcy and sued to avoid the foreclosure sale as a preferential transfer to the second lienholder. Among other things, this required her to show that the second lienholder received more than it would have in a Chapter 7 liquidation. Veltre’s theory was that the foreclosure sale suppressed the price of the real estate, and that in Chapter 7, the home would have sold for a greater amount. Thus, the second lienholder received a better deal in the foreclosure sale than it would have in bankruptcy. Veltre did not allege that the foreclosure sale was collusive or that it failed to comply with state law.

[JDSUPRA]

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BENSOUSSAN v. Banon5 LLC | FL 3rd DCA – Banon5 and Elmaleh wrongfully changed the locks and denied access to the Unit to the Prior Owners…and unlicensed movers and persons hired by Banon5 and Elmaleh stole the personal property “for their own use, or to be sold for their benefit

BENSOUSSAN v. Banon5 LLC | FL 3rd DCA – Banon5 and Elmaleh wrongfully changed the locks and denied access to the Unit to the Prior Owners…and unlicensed movers and persons hired by Banon5 and Elmaleh stole the personal property “for their own use, or to be sold for their benefit

 

Valerie Viviane Bensoussan and Marc Cohen, Appellants,
v.
Banon5 LLC, etc., et al., Appellees.

Case No. 3D17-1493.
District Court of Appeal of Florida, Third District.
Opinion filed July 18, 2018.
An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 16-4, John Schlesinger, Judge.

Xander Law Group, P.A., and Wayne R. Atkins, for appellants.

Eric J. Grabois, for appellees.

Before SALTER, EMAS and LOGUE, JJ.

SALTER, Judge.

Valerie Bensoussan and Marc Cohen (“Prior Owners”) appeal a final judgment and circuit court order dismissing their amended complaint with prejudice. We reverse and remand the case for further proceedings.

Circuit Court Proceedings and 2015 Appeal

The appellees are a company (“Banon5”) which acquired title to the condominium unit previously owned by the Prior Owners (the “Unit”). The Prior Owners lost title to the Unit in a foreclosure; Banon5 was the successful bidder at the foreclosure sale. Another appellee, Pierre Elmaleh, is a principal and agent of Banon5.

Following the foreclosure sale, the Prior Owners commenced an earlier appeal to this Court seeking review of orders denying their objections to the foreclosure sale and their motion to vacate that sale. That prior appeal, Cohen v. Laze-E-J, LLC, Case No. 3D15-1382, was pending when Banon5 sought and obtained issuance of a writ of possession (July 1, 2015) in order to obtain possession and control of the Unit. Neither the final judgment of foreclosure nor the writ of possession, however, authorized Banon5 to take or retain possession of the Prior Owners’ personal property within the Unit.

On the same day the trial court granted Banon5’s motion for a writ of possession, the Prior Owners filed an emergency motion in this Court for review of the trial court’s order denying a stay pending their appeal. Before the writ of possession was carried out, this Court entered a temporary stay (July 2, 2015) and directed that a response to the emergency motion be filed within ten days by the foreclosing lender and Banon5 in Case No. 3D15-1382.

After consideration of Banon5’s response, this Court lifted the temporary stay on July 14, 2015.[1] The following day, Banon5 and Elmaleh brought the police to the Unit to carry out the writ of possession.

The execution of the writ of possession and disposition of the Prior Owners’ personal property inside the Unit became the subject of a separate, 2016 lawsuit by the Prior Owners against Banon5, Elmaleh, and the condominium association.[2] The present appeal was taken from the final judgment and order of dismissal in that separate case.

In their first amended complaint in the 2016 lawsuit, the Prior Owners alleged four of the five counts against Banon5 and Elmaleh, for civil theft, conversion, replevin, and negligence, and a single negligence count against the association. The allegations essentially contended that: Banon5 and Elmaleh did not allow the Prior Owners a reasonable time (following this Court’s termination of the temporary stay) within which to remove their personal property from the Unit; Banon5 and Elmaleh had no right to possession or control of that personal property; Banon5 and Elmaleh wrongfully changed the locks and denied access to the Unit to the Prior Owners and their scheduled movers, depriving them of the opportunity to move the personal property to their new residence; and unlicensed movers and persons hired by Banon5 and Elmaleh stole the personal property “for their own use, or to be sold for their benefit.”[3]

In 2017, the trial court entered the final judgment and order dismissing the first amended complaint with prejudice, and this appeal followed.

Analysis

We review de novo the final order of dismissal with prejudice, assuming all allegations of the first amended complaint to be true, and construing all reasonable inferences from those allegations in favor of the Prior Owners. United Auto. Ins. Co. v. Law Offices of Michael I. Libman, 46 So. 3d 1101, 1103-04 (Fla. 3d DCA 2010).

I. Section 83.62, Florida Statutes, Is Inapplicable

The trial court order states that the Prior Owners were alleging that “the put-out on July 15, 2015 is governed by Florida Statutes § 83.62.” That statute is a part of the Florida Residential Landlord and Tenant Act, and the Act applies to “the rental of a dwelling unit.”[4] Section 83.62 is not applicable to a writ of possession to dispossess a former owner remaining in possession after a foreclosure sale with no rental agreement in effect.

But the trial court’s order was incorrect in its implications that all of the Prior Owners’ claims relied on that statute, and that the statute itself offered Banon5 and Elmaleh “an immunity from liability for any loss, destruction or damage to the personal property after its removal from the premises.” The amended complaint mentioned section 83.62 in a footnote to one paragraph of the general allegations and in one paragraph within the conversion count. There is no separate claim grounded on a violation of section 83.62, nor are the causes of action alleged in the amended complaint irrevocably tethered to a breach of that statute.

Section 83.62(2) applies to a writ of possession executed by the sheriff regarding a residential apartment. It authorizes the landlord or an agent of the landlord to “remove any personal property [of the tenant being evicted] found on the premises to or near the property line.” When that procedure has been followed, “Neither the sheriff nor the landlord or the landlord’s agent shall be liable to the tenant or any other party for the loss, destruction, or damage to the property after it has been removed.” Id.

Because the statute is inapplicable to the record before us, however, it does not provide immunity for Banon5 or Elmaleh, or legal grounds for the order dismissing the Prior Owners’ amended complaint with prejudice. The parties were never landlord and tenant, one to the other. Our conclusion on this point aligns with that of the Fifth District in Skelton v. Real Estate Solutions Home Sellers, LLC, 202 So. 3d 960 (Fla. 5th DCA 2016).

II. Equitable Subrogation to Mortgagee’s Rights

The order of dismissal also determined that Banon5 and Elmaleh had a legal right to retain the Prior Owners’ personal property because Banon5 had become equitably subordinated to the foreclosing mortgagee’s rights. The order observed that the mortgage in this case encumbered “all furniture, furnishings, fixtures and equipment contained in or appurtenant to said premises [the Unit].”

An examination of the final judgment of foreclosure, however, discloses that the mortgage lien and the sale only included the Unit, and not any personal property within the Unit. The subrogation argument also fails under the well-settled principle of merger. Nack Holdings, LLC v. Kalb, 13 So. 3d 92, 94 (Fla. 3d DCA 2009)Whitehurst v. Camp, 699 So. 2d 679, 682 (Fla. 1997).

When a final judgment is entered foreclosing a mortgage, the mortgage itself “loses its identity,” and the final judgment itself controls the mortgagee’s/judgment creditor’s rights. Nack Holdings, LLC, 13 So. 3d at 94 n.2 (quoting Whitehurst, 699 So. 2d at 682). At the foreclosure sale, the Clerk only sold the Unit, and there existed no residual mortgage lien for Banon5 to buy regarding the personal property within the Unit.

III. The Prior Owners’ Claims

We agree with the trial court that the Prior Owners do not have a cause of action for property removed from the Unit in the presence of the police pursuant to the writ of possession. That said, however, we find that the allegations of the first amended complaint state a cause of action regarding Banon5’s and Elmaleh’s exercise of control over the Prior Owners’ personal property in the Unit after the locks were changed and after Elmaleh refused to allow the Prior Owners and their movers to enter the Unit to remove property in the Unit. Envases Venezolanos, S.A. v. Collazo, 559 So. 2d 651, 652-53 (Fla. 3d DCA 1990). The allegations in the amended complaint and its attachments are legally sufficient “[u]nder the applicable standard of review at this procedural point,” though the allegations remain subject to proof, defenses, and affirmative defenses as the case proceeds. See Ice v. Cosmopolitan Residences on S. Beach, a Condo. Ass’n, 237 So. 3d 408, 412 (Fla. 3d DCA 2017).

IV. Conclusion

The final judgment and order granting dismissal of the amended complaint with prejudice is reversed and the case is remanded to the trial court for further proceedings.

Not final until disposition of timely filed motion for rehearing.

[1] In November 2015, the Prior Owners voluntarily dismissed their earlier appeal (Case No. 3D15-1382) relating to their motion to vacate the final judgment of foreclosure and their objections to the foreclosure sale to Banon5.

[2] This appeal does not involve the claim by the Prior Owners against the condominium association; the Prior Owners voluntarily dismissed that claim with prejudice before the trial court entered the final order presently under review.

[3] The amended complaint acknowledges that a limited number of items of the Prior Owners’ personal property were returned to the control of the Prior Owners in August 2015 as the Miami Beach police investigated the loading of a pickup truck with those items. Allegedly, the items were being removed from the condominium by employees of Banon5 and Elmaleh. The itemized list of the Prior Owners’ personal property subject to their claims and located in the Unit at the time they were locked out included estimated values for each item and a total exceeding $209,000.00.

[4] § 83.41, Fla. Stat. (2015).

 

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Posted in STOP FORECLOSURE FRAUD0 Comments

Are we really safe from the next financial crisis?

Are we really safe from the next financial crisis?

Politico-

The U.S. financial system is safer a decade after the worst financial crisis since the Great Depression. But that may be more a matter of luck and timing than anything done in response to the meltdown of 2008.

“We are safer,” Harvard economics professor Ken Rogoff said in the latest edition of the POLITICO Money podcast, recorded from a panel at the POLITICO Pro Summit. “A lot of it comes from when the whole system has been traumatized — consumers, investors, policy makers, regulators — you are less likely to have something right away afterwards. People are very nervous.”

But Rogoff said the rapid rollback of many protections in the Dodd-Frank financial reform law are unlike anything seen following previous major crises. “Usually it takes many decades before everybody says, ‘Hey, things are going great. Why do we have all these regulations? Let’s pull them back.’ That’s a very typical dynamic. We’ve kind of had that faster this time so maybe we could get in more trouble quickly.”

[POLITICO]

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

TFH 7/22 | How To Disprove Standing of Pretender Lenders in Foreclosure Proceedings by Offensively Weaponizing Your Discovery Even if Appearing Pro Se

TFH 7/22 | How To Disprove Standing of Pretender Lenders in Foreclosure Proceedings by Offensively Weaponizing Your Discovery Even if Appearing Pro Se

COMING TO YOU LIVE DIRECTLY FROM THE DUBIN LAW OFFICES AT HARBOR COURT, DOWNTOWN HONOLULU, HAWAII

LISTEN TO KHVH-AM (830 ON THE AM RADIO DIAL)

ALSO AVAILABLE ON KHVH-AM ON THE iHEART APP ON THE INTERNET

.

Sunday – July 22, 2018

How To Disprove Standing of Pretender Lenders in Foreclosure Proceedings by Offensively Weaponizing Your Discovery Even if Appearing Pro Se

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 ———————

 

On recent shows we have highlighted new standing requirements in Hawaii for foreclosing plaintiffs and how to thereby argue lack of proof of standing challenging the offers of proof of pretender lenders having no jurisdictional right to foreclose.

These new Hawaii appellate decisions have drawn widespread national attention and growing support, particularly due to how detailed their analysis has been.

On today’s show we take the discussion regarding proof of standing to a new dimension, suggesting ways not of just defensively arguing a lack of proof of standing in the record as we have done on several past shows, but also how to use established discovery tools to offensively prove a foreclosing plaintiff has no standing, to support the granting of summary judgment in your favor for a change.

To do so, our listeners need to understand six discovery weapons to be explained on today’s show, which may be combined and which may be enforced by subpoenas when served on nonparties:

1. Notices of the taking of oral depositions of parties.

2. Notices of the taking of depositions upon written questions of any person.

3. Requests for answers to interrogatories to parties.

4. Requests for production of documents to any person.

5. Requests for the inspection of documents and things to any person.

6. Requests for answers to written admissions to parties.

John and I will also suggest on today’s show the necessary content of such discovery and what you should be asking for in terms the complete securitization history of the note and mortgage, the chain of ownership and possession of the note and mortgage, record of payments and how much was actually paid by whom to whom for all note and mortgage transfers, the “collateral file,” default notices, general ledger, insurance, loan servicer history, and all government participation in the loan including Fannie Mae and Freddie Mac.

Gary Dubin

Please go to our website, www.foreclosurehour.com, and join your fellow homeowners in the Homeowners SuperPac today.

A Membership Application is posted there waiting for your support.

 

 

.
Host: Gary Dubin Co-Host: John Waihee

.

CALL IN AT (808) 521-8383 OR TOLL FREE (888) 565-8383

Have your questions answered on the air.

Submit questions to info@foreclosurehour.com

The Foreclosure Hour is a public service of the Dubin Law Offices

Past Broadcasts

EVERY SUNDAY
3:00 PM HAWAII 
6:00 PM PACIFIC
9:00 PM EASTERN
ON KHVH-AM
(830 ON THE DIAL)
AND ON
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The Foreclosure Hour 12

 

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Posted in STOP FORECLOSURE FRAUD0 Comments

In one chaotic courtroom, free counselors and attorneys have saved 11,000 Philly homes from foreclosure

In one chaotic courtroom, free counselors and attorneys have saved 11,000 Philly homes from foreclosure

Philly-

Two months and 13 days before Linda DaCosta stepped into Courtroom 676 in Philadelphia City Hall, the single mom of twin girls answered a knock she never expected.

It happened on a Sunday, just before dinner, on one of those crisp April days that made her love West Philadelphia. Inside her newly renovated condo, her grade-school-age girls were watching TV. DaCosta, a 41-year-old nurse, had joined in, taking a reprieve from divorce filings, night shifts, and job applications that had consumed her for the last year.

Then came the knock and the doorbell, buzzing again and again. A man was outside, holding a stack of foreclosure documents. DaCosta was being served.

[PHILLY]

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Posted in STOP FORECLOSURE FRAUD0 Comments

Jury awards Garland woman $755,000 in lawsuit alleging foreclosure fraud

Jury awards Garland woman $755,000 in lawsuit alleging foreclosure fraud

She purchased her home in 2001, and paid on it for 14 years, but began to fall behind in 2015 and the home fell into foreclosure. Days after the foreclosure notice went public, someone knocked at her door, and offered to help sell her home.

WFAA-

Angelica Garcia is an immigrant from Honduras, a widow, and mother of two. Her version of the American dream was a one level brick home on a quiet street in Garland.

“I was very excited when I bought my house. To me, it was beautiful house,” she said in her native Spanish.

Garcia purchased her home in 2001, and paid on it for 14 years, but began to fall behind in 2015 and the home fell into foreclosure. Days after the foreclosure notice went public, someone knocked at her door, and offered to help sell her home.

[WFAA]

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Posted in STOP FORECLOSURE FRAUD0 Comments

DYCK-O’NEAL, INC. v. Lanham, Fla: Supreme Court 2018 – section 702.06, Florida Statutes (2014), permits the lender or its assignee to bring its deficiency claim in a separate action at law

DYCK-O’NEAL, INC. v. Lanham, Fla: Supreme Court 2018 – section 702.06, Florida Statutes (2014), permits the lender or its assignee to bring its deficiency claim in a separate action at law

 

DYCK-O’NEAL, INC., Petitioner,
v.
HEATHER LANHAM, Respondent.

No. SC17-975.
Supreme Court of Florida.
July 5, 2018.
Application for Review of the Decision of the District Court of Appeal — Certified Direct Conflict of Decisions First District — Case No. 1D16-1624 (Gadsden County).

David M. Snyder, Tampa, Florida; Susan B. Morrison of Law Offices of Susan B. Morrison, P.A., Tampa, Florida; and Joshua D. Moore of Law Offices of Daniel C. Consuegra, Tampa, Florida, for Petitioner.

Rick A. Savage of Savage Law Office, PLLC, Tallahassee, Florida; and Jacob D. Flentke of Flentke Legal Consulting, PLLC, Orlando, Florida, for Respondent.

Natasha Shaikh of Shaikh & Shaikh, P.A., Orlando, Florida, Amicus Curiae.

LAWSON, J.

This case is before the Court for review of the decision of the First District Court of Appeal in Dyck-O’Neal, Inc. v. Lanham, 214 So. 3d 802 (Fla. 1st DCA 2017). The district court certified that its decision is in direct conflict with decisions of every other district court of appeal—Garcia v. Dyck-O’Neal, Inc., 178 So. 3d 433 (Fla. 3d DCA 2015), Dyck-O’Neal, Inc. v. Hendrick, 200 So. 3d 181 (Fla. 5th DCA 2016),Gdovin v. Dyck-O’Neal, Inc., 198 So. 3d 986 (Fla. 2d DCA 2016), and Dyck-O’Neal, Inc. v. McKenna, 198 So. 3d 1038 (Fla. 4th DCA 2016), regarding whether a complainant may pursue a separate action at law to recover a deficiency judgment when the foreclosure court reserved jurisdiction in its final judgment to adjudicate the deficiency claim. We have jurisdiction, see art. V, § 3(b)(3), Fla. Const., and hold that when a foreclosure court reserves jurisdiction to adjudicate a deficiency judgment claim but has not adjudicated the claim, section 702.06, Florida Statutes (2014), permits the lender or its assignee to bring its deficiency claim in a separate action at law. Because the First District held otherwise, we quash the decision below and approve the certified conflict decisions of the Second, Third, Fourth and Fifth District Courts of Appeal.

BACKGROUND

Heather Lanham’s residential property in Gadsden County, Florida, was foreclosed by final judgement. That judgment expressly reserved jurisdiction to rule on any future deficiency claim, although no one sought to adjudicate the claim in that forum. Instead, Dyck-O’Neal, Inc. (O’Neal), which was assigned the mortgage and note, filed a separate action at law seeking a deficiency judgment against Lanham. The trial court granted summary judgment for Lanham on an issue relating to the validity of O’Neal’s assignment, and O’Neal appealed. The First District quashed the trial court’s decision without reaching the assignment issue based upon its conclusion that the trial court lacked subject-matter jurisdiction over the suit under section 702.06, Florida Statutes (2014), because the foreclosure court had previously reserved jurisdiction to handle the deficiency claim. In so holding, the First District certified conflict with decisions from all four of the other district courts of appeal, and we accepted discretionary review.

ANALYSIS

The sole issue in this case is governed by section 702.06, Florida Statutes (2014), which every district court of appeal except for the First District has read as permitting a separate action at law for a deficiency judgment unless the foreclosure court has already granted or denied a deficiency claim. Questions of statutory interpretation are reviewed de novo. See Borden v. East-European Ins. Co., 921 So. 2d 587, 591 (Fla. 2006).

Section 702.06 reads in relevant part:

In all suits for the foreclosure of mortgages heretofore or hereafter executed the entry of a deficiency decree for any portion of a deficiency, should one exist, shall be within the sound discretion of the court. . . . The complainant shall also have the right to sue at common law to recover such deficiency, unless the court in the foreclosure action has granted or denied a claim for a deficiency judgment.

§ 702.06, Fla. Stat. (2014) (emphasis added).

“When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, . . . the statute must be given its plain and obvious meaning.” Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (quoting A.R. Douglass, Inc. v. McRainey, 137 So. 157, 159 (Fla. 1931)). Here, the statute plainly allows the foreclosure court to adjudicate the deficiency claim but also gives the complainant “the right to sue at common law to recover such deficiency, unless the court in the foreclosure action has granted or denied a claim for a deficiency judgment.” (Emphasis added.) A reservation of jurisdiction is not a grant or denial of the claim. The foreclosure court would have only “granted or denied” the deficiency judgment if it had adjudicated the claim. Therefore, this statute plainly precludes the separate action only where the foreclosure court has actually ruled on the claim—as held by the Second, Third, Fourth and Fifth District Courts of Appeal.

In reaching a different result below, the First District relied on its prior decision in Higgins v. Dyck-O’Neal, Inc., 201 So. 3d 157 (Fla. 1st DCA 2016)See O’Neal, 214 So. 3d at 802. However, in Higgins, the First District examined this Court’s precedent interpreting an older version of section 702.06 that did not contain the “granted or denied” language. See Higgins, 201 So. 3d at 159-63. As correctly explained by the dissent in Higgins: “The clarity of the 2013 statutory language decides this case. . . . [and the cases relied upon by the majority of the First District panel are] immaterial because the 2013 statutory language at issue trumps whatever perceived inconsistency . . . [exists] with prior precedents.” Id. at 167 (Makar, J., dissenting).

CONCLUSION

We quash the decision below in O’Neal, disapprove Higgins, approve Garcia, Hendrick, Gdovin, and McKenna, and hold that section 702.06, Florida Statutes (2014), permits an independent action at law for a deficiency judgment when the foreclosure court has expressly reserved jurisdiction to handle a deficiency claim but has not actually decided the merits of the claim.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, and LABARGA, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

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Posted in STOP FORECLOSURE FRAUD0 Comments

Soule v. US Bank National Association | FL 2nd DCA – Without testimony based on such personal knowledge, the Bank’s only competent evidence was that the default letter had been prepared—not that it had been mailed.

Soule v. US Bank National Association | FL 2nd DCA – Without testimony based on such personal knowledge, the Bank’s only competent evidence was that the default letter had been prepared—not that it had been mailed.

 

STEVEN E. SOULE, Appellant,
v.
U.S. BANK NATIONAL ASSOCIATION, as trustee for BNC Mortgage Loan Trust 2007-1 Mortgage Pass-Through Certificates, Series 2007-1, Appellee.

Case No. 2D16-3231.
District Court of Appeal of Florida, Second District.
Opinion filed July 13, 2018.
Appeal from the Circuit Court for Pasco County; Kemba Lewis, Judge.

Mark P. Stopa of Stopa Law Firm, LLC, Tampa; and Latasha Scott of Lord Scott, PLLC, Tampa, for Appellant.

David S. Ehrlich of Blank Rome LLP, Fort Lauderdale, for Appellee.

BY ORDER OF THE COURT:

Appellant’s motion for rehearing is granted, the prior opinion dated May 2, 2018, is withdrawn, and the attached opinion is issued in its place. Because full relief has been granted by the panel’s ruling on the motion for rehearing, Appellant’s motion for rehearing en banc is denied as moot. Appellee’s motion to reconsider or strike the court’s order granting appellant’s appellate attorneys’ fees is denied.

VILLANTI, Judge.

Steven E. Soule appeals the final judgment of foreclosure entered in favor of U.S. Bank National Association, as trustee for BNC Mortgage Loan Trust 2007-1 Mortgage Pass-Through Certificates, Series 2007-1 (the Bank). While Soule raised a number of grounds for reversal of the final judgment, we reject all of his arguments except one relating to the sufficiency of the evidence to establish that the Bank complied with paragraph 22 of the mortgage by giving notice of the default to Soule. On this single basis, we reverse and remand for entry of an involuntary dismissal of the Bank’s case.

In November 2013, the Bank filed its foreclosure complaint against Soule based on his alleged failure to make his March 2011 payment and all subsequent payments. In his answer, Soule denied that the Bank had complied with all conditions precedent to bringing the action and alleged as an affirmative defense the Bank’s failure to comply with the notice provisions of paragraph 22 of the mortgage.

At trial, Ocwen employee Nena Kamman testified on behalf of the Bank. Ocwen was the servicer of Soule’s loan at the time of trial, but Ocwen had taken over servicing of the loan from Chase, and Chase was the servicer that had prepared and allegedly mailed the default letter pursuant to paragraph 22 in May of 2011. Kamman testified that she had never worked for Chase.

During trial, Kamman testified that the default letter was part of the business records that Ocwen received from Chase. She also testified to the boarding process for new loans that Ocwen obtained. As part of that testimony, she asserted that Ocwen would not have boarded a loan if there were any “red flags” related to the loan. She testified that such a “red flag” might arise if “there was any indication that a breach letter hadn’t been sent.” But she did not testify to how anyone at Ocwen would know whether a default letter that was imaged into Chase’s system had or had not been mailed or what information might be in Chase’s file to indicate that a default letter had not been mailed. She did testify that a default letter would not have been imaged into Chase’s system if it had not been mailed, but she admitted that she had never been trained in any of Chase’s procedures and she offered no testimony that would show that she had any personal knowledge of this alleged imaging procedure.

Both at trial and in this appeal, Soule argued that Kamman’s testimony was insufficient to establish that the default letter prepared by Chase had actually been mailed. Soule admitted that Kamman’s testimony was sufficient to permit the Bank to introduce the default letter into evidence; however, he argued that simply introducing the letter into evidence was insufficient to show that it was mailed. Relying on Eig v. Insurance Co. of North America, 447 So. 2d 377, 379 (Fla. 3d DCA 1984), Soule argued that the Bank had to introduce competent, substantial evidence of what Chase’s routine business practices were in order to rely on those practices to prove conformity therewith. And because Kamman did not have personal knowledge of Chase’s routine business practices concerning the mailing of default letters, her testimony could not provide competent, substantial evidence of those practices. Therefore, he argued, while the default letter itself was admissible, there was no evidence to prove that it was mailed and so the Bank’s case should be dismissed. The trial court rejected this argument, as initially did we.

At the time of trial and when this case was originally heard at oral argument, there was no law from this district on the issue of what foundational testimony was required to prove that a default letter had been mailed by a prior servicer. However, we recently issued an opinion addressing this exact issue in Spencer v. DiTech Financial, LLC, 43 Fla. L. Weekly D720 (Fla. 2d DCA Apr. 4, 2018). In that case, EverHome was the predecessor servicer to DiTech. Id. at D721. At the foreclosure trial, Ms. Knight, an employee of DiTech, testified that EverHome, as the prior servicer, had prepared and mailed the default letter to Spencer in 2010. Id. However, the testimony established that Ms. Knight had never worked for EverHome, had no personal knowledge of its practices or procedures for preparing and mailing default letters, had not read EverHome’s policies and procedures for preparing and mailing default letters, and had never spoken to anyone at EverHome about how this particular letter had been generated or mailed. Id. Moreover, the evidence showed that the loan was transferred to DiTech in 2014—four years after the default letter had been created and allegedly mailed. Id. In finding Ms. Knight’s testimony insufficient to prove that the default letter had been mailed, this court explained:

This evidence was insufficient to show that the default letter was actually sent. “The fact that a document is drafted is insufficient in itself to establish that it was mailed.” Allen v. Wilmington Tr., N.A., 216 So. 3d 685, 687-88 (Fla. 2d DCA 2017); see also Edmonds v. U.S. Bank Nat’l Ass’n, 215 So. 3d 628, 630 (Fla. 2d DCA 2017) (citing Allen with approval). Rather, “mailing must be proven by producing additional evidence such as proof of regular business practices, an affidavit swearing that the letter was mailed, or a return receipt.” Allen, 216 So. 3d at 688.

Testimony regarding a company’s routine business practices may establish a rebuttable presumption that the default letter was mailed. Id. (citing § 90.406, Fla. Stat. (2014)). But the witness must have personal knowledge of the company’s general mailing practice—meaning that the witness must be employed by the entity drafting the letters and must have firsthand knowledge of the company’s routine practice for mailing letters. See id.; Edmonds, 215 So. 3d at 630; see also CitiMortgage, Inc. v. Hoskinson, 200 So. 3d 191, 192 (Fla. 5th DCA 2016) (holding that there was sufficient evidence to establish mailing based on routine business practices where witness testified that she had personally observed coworkers generate breach letters and deliver them to the mail room to be collected by the postal service). Here, Ms. Knight admitted that she was never employed by EverHome and did not have firsthand knowledge of EverHome’s mailing practices as of the date the default letter was generated. Therefore, her testimony was insufficient to establish that the default letter was mailed.

Id. (emphasis added). And because Ms. Knight’s testimony was insufficient to establish that the default letter was mailed, this court reversed the final judgment and remanded for entry of an involuntary dismissal. Id.

The facts of this case are essentially on all fours with Spencer. Like DiTech, Ocwen here was a successor servicer that had not prepared or mailed the default letter. And Kamman, like Ms. Knight, worked for the successor servicer and had no personal knowledge of the mailing practices of the predecessor servicer. Therefore, while Kamman’s testimony was sufficient to lay the foundation to admit the letter as a business record, it was insufficient to prove that Chase had actually mailed the letter because Kamman had no personal knowledge of either that fact or Chase’s policies and practices for mailing. Without testimony based on such personal knowledge, the Bank’s only competent evidence was that the default letter had been prepared—not that it had been mailed. Therefore, for the same reasons we did in Spencer, we reverse the final judgment in this case and remand for entry of an involuntary dismissal.

Reversed and remanded for dismissal.

CASANUEVA and CRENSHAW, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

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Posted in STOP FORECLOSURE FRAUD0 Comments

Trump’s Consumer Banking Lapdog Could Take Complaints Database Offline

Trump’s Consumer Banking Lapdog Could Take Complaints Database Offline

NBC-

Taxpayers have until midnight tonight to share concerns about an end to public access of a consumer banking complaint database — the latest in a series of moves by the Trump Administration to dismantle the Consumer Financial Protection Bureau.

That watchdog agency, also known as the CFPB, was created in the aftermath of the 2007 – 2008 financial crisis.  It takes and reviews complaints from consumers against banks, lenders, and other financial institutions.  In some circumstances, the CFPB has levied fines and other punishments against banks for anti-consumer practices.

A public database of consumer complaints can be viewed on the CFPB website.  It currently lists more than 1 million complaints — with more than 8,000 of those originating in the Bay Area.

[NBC]

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California forced to give back $331 million stolen from home-owners

California forced to give back $331 million stolen from home-owners

American Thinker-

What if the bluest state in the country stole a third of a billion dollars from victims of chicanery and the media refused to notice?

I have been stunned at the lack of media coverage of California’s foiled robbery of almost a third of a billion dollars.  That’s right: under Governor Jerry Brown, the Great State of California helped itself to hundreds of millions of dollars – money that was supposed to go to home-owners – and you probably didn’t hear about it.

Bib Egelko of the San Francisco Chronicle was one of the few to cover this story, and it did not exactly generate nationwide headlines for some reason:

When California received $410 million in 2012 as part of a nationwide settlement with major banks accused of abusive foreclosures, Gov. Jerry Brown used $331 million to pay state agencies in housing and other programs to cover their deficits.

Now a state appeals court has ordered the money be used for its original intent: to help homeowners who suffered foreclosures.

The money was “unlawfully diverted” from a settlement fund that was designated for programs directly assisting homeowners, the Third District Court of Appeal in Sacramento said Tuesday.  A Sacramento County judge had reached the same conclusion but found he lacked authority to order the state to redirect the money, a finding the appeals court rejected.

[AMERICAN THINKER]

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Posted in STOP FORECLOSURE FRAUD1 Comment

Fischer v. HSBC BANK USA, NATIONAL ASSOCIATION | FL 2nd DCA – we reverse the final judgment of foreclosure. Because the trial court explicitly found that there was no standing at the inception of the lawsuit, we remand for the trial court to enter an involuntary dismissal

Fischer v. HSBC BANK USA, NATIONAL ASSOCIATION | FL 2nd DCA – we reverse the final judgment of foreclosure. Because the trial court explicitly found that there was no standing at the inception of the lawsuit, we remand for the trial court to enter an involuntary dismissal

JAMES FISCHER, Appellant,
v.
HSBC BANK USA, NATIONAL ASSOCIATION AS TRUSTEE FOR DEUTSCHE ALT-A SECURITIES, INC., MORTGAGE LOAN TRUST, SERIES 2006-AR1; and DEBRA FISCHER, Appellees.

Case No. 2D16-5307.
District Court of Appeal of Florida, Second District.

Opinion filed July 6, 2018.
Appeal from the Circuit Court for Charlotte County; James R. Thompson, Judge.

Inger M. Garcia of Florida Litigation Group, P.A., Lighthouse Point; and Rachel M. Coe of Polaris Legal Group, Lighthouse Point, for Appellant.

Zina Gabsi of Bryan Cave LLP, Miami; and W. Bard Brockman of Bryan Cave LLP, Atlanta, Georgia, for Appellee HSBC Bank USA.

No appearance for remaining Appellee.

SILBERMAN, Judge.

James Fischer appeals a final judgment of mortgage foreclosure in favor of HSBC Bank USA, National Association, as Trustee for Deutsche Alt-A Securities, Inc., Mortgage Loan Trust, Series 2006-AR1 (HSBC), and contends that the trial court should have granted his motion for involuntary dismissal for lack of standing at inception. He contends that the trial court erred in taking judicial notice of the Third Amended Chapter 13 Plan in his bankruptcy proceedings and in preventing Fischer, based on the doctrine of judicial estoppel, from presenting a standing defense. We conclude that the judicially noticed bankruptcy documents do not show that Fischer is prohibited from opposing HSBC’s foreclosure action. Because the trial court determined that the original plaintiff lacked standing at the inception of the lawsuit, we reverse and remand for the trial court to enter an involuntary dismissal.

The promissory note was executed in 2005, and the original lender was First National Bank of Arizona. A mortgage on property located at 830 Bloxham Avenue, Punta Gorda, secured repayment of the note. On May 7, 2008, Residential Funding Company, LLC (RFC), filed its two-count complaint against Fischer for mortgage foreclosure and to reestablish a lost note. In 2014, the case was placed on inactive status due to a bankruptcy stay. After RFC gave notice of the Order Confirming Plan (the Order), the trial court granted RFC’s motion to reopen the foreclosure case.

Fischer then filed a verified motion to strike sham pleading on the basis that RFC did not have standing to file the complaint and contended that the complaint was falsely or fraudulently filed. RFC filed a motion to substitute HSBC as party plaintiff, and the trial court granted the motion. In 2016, HSBC voluntarily dismissed the lost note count.

The trial occurred on November 8, 2016, and the trial court prohibited Fischer from raising standing as a defense because the trial court determined, based on judicially noticed bankruptcy documents, that Fischer had surrendered the subject property in the bankruptcy. The trial court judicially noticed the Third Amended Chapter 13 Plan, the Order, and the Discharge of Debtor After Completion of Chapter 13 Plan. Paragraph I of the Third Amended Chapter 13 Plan is entitled “Surrender of Collateral/Leased Property.” It provides that “Debtor will surrender the following collateral/leased property no later than thirty (30) days from the filing of the petition unless specified otherwise in the Plan.” The property at “830 Bloxham Ave.” is one of the three properties listed as “Property/Collateral to be Surrendered” with the creditor for that property listed as “Ocwen Loan Svc.” Paragraph 4 of the Order provides that “[c]laims are allowed and security surrendered to creditors set forth in Exhibit `A.'” But Exhibit A does not list the Bloxham Avenue property or “Ocwen Loan Svc.” or HSBC. The Order provides that modifications to the plan, whether by order or in open court, are incorporated in the Order.

The trial court allowed Fischer to proffer some evidence on standing, and HSBC’s only witness, an employee of Ocwen Financial Servicing, admitted that it was his understanding that RFC did not own or hold the note at the time the lawsuit was filed. The note was not attached to the original complaint. The trial court found that the evidence failed to show that RFC had standing at inception but found that HSBC had standing at the time of trial. Fischer argued for an involuntary dismissal on the basis of lack of standing and other grounds. The trial court entered a final judgment of foreclosure in favor of HSBC.

Fischer contends that the trial court abused its discretion in taking judicial notice of the Third Amended Chapter 13 Plan when HSBC did not comply with the requirements for judicial notice. But regardless of whether judicial notice was proper, the bankruptcy documents that HSBC presented failed to show that Fischer actually surrendered the Bloxham property in his chapter 13 bankruptcy. Thus, the trial court erred in applying the doctrine of judicial estoppel to prevent him from presenting a defense of lack of standing.

The provisions of “a confirmed chapter 13 plan `bind[ ] the debtor and each creditor.'” In re Scott, 567 B.R. 847, 851 (Bankr. S.D. Fla. 2017) (alteration in original) (quoting 11 U.S.C. § 1327(a) (2012)). A “chapter 13 plan provides for the disposition of each piece of property, including whether the debtor will surrender a property.” Id. Although “debtors who surrender their property can no longer contest a foreclosure action,” the creditor must still take the legal action of a foreclosure proceeding to recover the property. In re Failla, 838 F.3d 1170, 1177 (11th Cir. 2016) (dealing with a chapter 7 case); see also Scott, 567 B.R. at 851 (applying Failla to a chapter 13 case); In re Metzler, 530 B.R. 894, 899 (Bankr. M.D. Fla. 2015) (determining in a chapter 13 case that a surrender of property prohibited the debtor from “taking an overt act to prevent the secured creditor from foreclosing its interest in the secured property”). The Failla court recognized that “a creditor may be able to invoke the doctrine of judicial estoppel in state court to force debtors to keep a promise made in bankruptcy court.” Failla, 838 F.3d at 1179.

The doctrine of judicial estoppel prevents a litigant from taking inconsistent positions in separate judicial proceedings. Zeeuw v. BFI Waste Sys. of N. Am., Inc., 997 So. 2d 1218, 1220 (Fla. 2d DCA 2008). For the doctrine to apply, the party to be estopped must have successfully maintained the position assumed in the earlier proceedings. Id. Thus, the court in the first proceeding must have adopted that position for judicial estoppel to apply. Id. In addition, the doctrine of judicial estoppel “requires a mutuality of parties.” Id. at 1221.

In Scott, the court stated that by opposing the state foreclosure action the debtor had violated the confirmed plan. 567 B.R. at 852. The court noted that the debtor was “bound by the confirmed chapter 13 plan” providing “that Debtor will surrender the homestead property.” Id.; see also Rivera v. Bank of Am., N.A., 190 So. 3d 267, 267 (Fla. 5th DCA 2016) (stating that the bankruptcy court had entered an “order confirming the debt and surrender of the property” to Appellee Bank of America); In re Lapeyre, 544 B.R. 719, 720 (Bankr. S.D. Fla. 2016) (“[T]he confirmed plan provides for the surrender of the property.”).

Nothing in the documents judicially noticed shows that by contesting standing Fischer would be violating the confirmed plan. The documents show that he indicated an intent to surrender the property to “Ocwen Loan Svc.” But the Order states that Exhibit A sets forth the “security surrendered to creditors,” and Exhibit A does not include the Bloxham property or “Ocwen Loan Svc.” or HSBC. We do not know if the plan had been modified or what else may have occurred in the bankruptcy proceedings. Because the documents that the trial court judicially noticed do not reflect that the bankruptcy court adopted the surrender of the Bloxham property, the trial court should not have applied the doctrine of judicial estoppel to prohibit Fischer from raising the defense of standing.

Therefore, we reverse the final judgment of foreclosure. Because the trial court explicitly found that there was no standing at the inception of the lawsuit, we remand for the trial court to enter an involuntary dismissal. See Corrigan v. Bank of Am., N.A., 189 So. 3d 187, 189 (Fla. 2d DCA 2016) (en banc) (“[I]t is axiomatic that standing must be shown as of the filing of the complaint.” (quoting Eagles Master Ass’n v. Bank of Am., N.A., 198 So. 3d 12, 14 (Fla. 2d DCA 2015))).

Reversed and remanded with directions.

LaROSE, C.J., and SALARIO, J., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



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TFH 7/15 | The Case Against “Pure Originalism” as the Greatest Internal Danger To American Democracy, and How Homeowners For Example Have Been Victimized by That Endemic Tendency in American Legal Reasoning.

TFH 7/15 | The Case Against “Pure Originalism” as the Greatest Internal Danger To American Democracy, and How Homeowners For Example Have Been Victimized by That Endemic Tendency in American Legal Reasoning.

COMING TO YOU LIVE DIRECTLY FROM THE DUBIN LAW OFFICES AT HARBOR COURT, DOWNTOWN HONOLULU, HAWAII

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Sunday – JULY 15, 2018

The Case Against “Pure Originalism” as the Greatest Internal Danger To American Democracy, and How Homeowners For Example Have Been Victimized by That Endemic Tendency in American Legal Reasoning.

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Once again America is in the midst of another judicial controversy as Congress is being asked by the President to approve a new Justice of the Supreme Court of the United States.

Although most homeowners are unaware, this renewed controversy between “activist” and “strict constructionist” theories of judicial decision making directly affects and has directly affected homeowners facing foreclosure in many, so far devastating, yet unseen ways.

On today’s show, John and I will explore “originalism” as a pure theory of rule interpretation and its variations by returning to and applying our previous analysis of “The Rule Ritual,” both in the context of contemporary controversies and in the context of foreclosure defense issues, suggesting how and why “originalism” in its pure form continues to pose a grave threat to American Democracy.

Among the topics that John and I will discuss, time permitting, are:

1. Why we have rules in the first place, the starting point for any such discussion of rules.

2. The difference between the source of rules in a dictatorship and the source of rules in a democracy.

3. The first principle of rule interpretation is treating like cases alike.

4. The second principle of rule interpretation is that no two cases are exactly alike.

5. The four change agents for interpreting and applying rules as “precedent” once the transactional facts are determined in an individual case are resources, order, precedent, and ends (“ROPE”).

6. Distinguishing between “rule statements” (the conclusions of thought) and “rules” (the triggers of thought) is crucial to a proper understanding of judicial decision making in all “rule enterprises.”

7. The “separation of powers” 1789 doctrine is itself a rule statement dividing rule related functions into legislative, executive, and judicial rule enterprise management.

8. The Rule Ritual undemocratically protects vested interests against the rules that have been promulgated in a democratic society by applying rule statements from the past as precedent rather than the rules themselves, absent “ROPE” code books.

9. As rule enterprises mature, “whereas” clauses in legislation enlarge, as do policy justifications in judicial opinions.

10. As rule enterprises mature, the role of educational institutions enlarges as the role of legislatures decreases.

American Democracy, it is submitted, will continue to become more and more artificially polarized, literally unable to survive, torn apart from within, its governmental institutions too slow to react to changing needs and therefore less and less useful and respected, until the American legal system replaces “The Rule Ritual,” an inherited, archaic Anglo-Saxon theory of legal reasoning with “Rule Enterprise Analysis” based on an accurate understanding of what a Rule actually is and reforms its governmental institutions according.

Countries that cannot resolve major differences within their legal system often do so only through civil wars.

Homeowners are not the only ones disheartened by American Justice, too often protecting vested interests blinded by The Rule Ritual.

Our governmental institutions too often seem incapable of resolving major social issues peaceably and expeditiously.

Problems are not the problem. How we relate to problems is the problem.

Please join John and me to experience for yourself how basic research and knowledge can positively impact and enlighten everyday courtroom advocacy and judicial decision making, especially when applied to foreclosures, our principal interest on The Foreclosure Hour.

Gary Dubin

Please go to our website, www.foreclosurehour.com, and join your fellow homeowners in the Homeowners SuperPac today.

A Membership Application is posted there waiting for your support.

 

 

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Host: Gary Dubin Co-Host: John Waihee

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The Foreclosure Hour 12

 

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



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Credit Suisse nears $360 million deadline in fraud suit built on a hunch

Credit Suisse nears $360 million deadline in fraud suit built on a hunch

Reuters-

Highland ultimately convinced a Texas court that Credit Suisse had breached its contract and aided and abetted fraud in the deal, and the decision was upheld on appeal. Now, Credit Suisse faces a July 18 court deadline to pay Highland $360 million or appeal to the Texas Supreme Court.

The victories to date have enhanced the reputation of a fledgling Texas law firm, and legal experts say they are likely to encourage other investment funds to take big banks to court.

“This case shows the big banks can’t hide behind disclaimers when they know certain facts,” said Carol Gilden, a lawyer who represents pension funds and other institutional investors in financial and securities disputes.

Global banks have settled dozens of lawsuits by governments and shareholders over financial crisis misconduct, but until the Highland suit, it was unusual for an investment fund to pursue tough-to-win fraud actions – especially against a major trading partner, as Credit Suisse was for Highland.

[REUTERS]

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



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